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The Supreme Court, the Texas Abortion Law (SB8), and the The Supreme Court, the Texas Abortion Law (SB8), and the

Beginning of the End of Beginning of the End of Roe v Wade? ?

I. Glenn Cohen Petrie-Flom Center for Health Law Policy, Biotechnology, and Bioethics, Harvard Law School

Eli Y. Adashi Medicine and Biological Sciences, Brown University

Lawrence O. Gostin Georgetown University - Law Center - O'Neill Institute for National and Global Health Law,

gostin@law.georgetown.edu

This paper can be downloaded free of charge from:

https://scholarship.law.georgetown.edu/facpub/2413

https://ssrn.com/abstract=3944703

The Journal of the American Medical Association Health Forum, published online September 23,

2021, at E1-E2.

This open-access article is brought to you by the Georgetown Law Library. Posted with permission of the author. Follow this and additional works at: https://scholarship.law.georgetown.edu/facpub

Part of the Health Law and Policy Commons, and the Law and Gender Commons

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The Supreme Court, SB8 and the Beginning of the End of Roe v. Wade?

By

I. Glenn Cohen JD, Eli Y. Adashi MD and Lawrence O. Gostin JD

I. Glenn Cohen JD, Deputy Dean and James A. Attwood and Leslie Williams Professor of Law, Harvard Law School, Faculty Director, Petrie-Flom Center for Health Law Policy, Biotechnology, and Bioethics, Harvard University, Cambridge, MA. Eli Y. Adashi MD, MS, Professor of Medical Science, Former Dean of Medicine and Biological Sciences, Brown University, Providence, RI. Lawrence O. Gostin, JD, University Professor and Founding Faculty Director, O’Neill Institute for National and Global Health Law, Georgetown University Law Center, Washington, DC Corresponding Author: I. Glenn Cohen Deputy Dean and James A. Attwood and Leslie Williams Professor of Law, Harvard Law School, Faculty Director, Petrie-Flom Center for Health Law Policy, Biotechnology, and Bioethics, Harvard University, 1525 Massachusetts Ave, Griswold Hall Room 503, Cambridge, MA 02138. igcohen@law.harvard.edu. Phone: 857-205-3068. Financial Disclosures: Professors Cohen, Adashi, and Gostin declare no conflicts of interest. Funding/Support: None Word Count: 1223

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Thirteen states have enacted so-called “fetal heartbeat” laws banning abortions once

embryotic cardiac activity can be detected. Courts have enjoined their enforcement as

unconstitutional. However, on September 1, 2021, the Supreme Court declined to block a Texas

fetal heartbeat law, which virtually eliminates access to abortion services.

Texas Governor Greg Abbott signed SB8 into law on May 19th, with an effective date of

September 1st. SB8 states, “a physician may not knowingly perform or induce an abortion on a

pregnant woman if the physician detected a fetal heartbeat for the unborn child,” absent a

medical emergency, and requires physicians to search for cardiac activity before aborting the

fetus.1 The law essentially prohibits abortion after 6 weeks of gestational age, before most

women know they are pregnant.

Texas’ fetal heartbeat law has a unique feature. It empowers private individuals to bring

civil lawsuits not just against physicians but also against anyone who “knowingly engages in

conduct that aids or abets the performance or inducement of an abortion,” regardless of whether

the person knew the abortion was unlawful. It includes “reimbursing the costs of an abortion

through insurance.” The language is so broad that it could cover a friend, clergyman, or even a

driver who counsels a woman or transports her to an abortion clinic. SB8 goes further, imposing

liability if the person even “intends to engage in the conduct.” Any citizen may bring a civil lawsuit

and, if successful, violators are required to pay damages of $10,000 or more for each abortion,

along with costs and attorney’s fees. SB8 therefore leaves the law’s enforcement not to state

officials, but to private individuals, who are rewarded with damages.1

The Law’s Constitutionality

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Existing Supreme Court precedent, particularly Roe v. Wade and Planned Parenthood v.

Casey, unambiguously prohibits states from outright bans on pre-viability abortions. The Texas

legislation sought to evade judicial review by enforcing the law exclusively through private civil

actions, while prohibiting state officers from enforcement.1 The seminal Supreme Court case of

Ex Parte Young2 allows a federal court to enjoin an unconstitutional law by suing a state official

administering the law. By prohibiting state enforcement, Texas sought to prevent constitutional

challenges, effectively insulating the state from meaningful judicial review.

The law’s goal is to deter physicians from offering abortions, and that has been the effect.

Planned Parenthood reports that 85% to 90% of those who seek abortions in Texas are at least

six weeks into pregnancy.3 Texas clinics are turning away women and some have discontinued

providing abortion services. Many women will find it difficult to travel to another state for

abortion services; the average trip has gone from 12 to 248 miles one-way. Lower-income women

may lack the means to travel (e.g., time-off from work, childcare, transportation costs).4 Traveling

long distances for an abortion might also alert a woman’s domestic partner placing her at risk.

Texas abortion providers and abortion rights groups brought a lawsuit challenging the

law’s constitutionality naming various Texas officials and seeking an order to prevent the

enforcement of the law during the pendency of the litigation. On September 1st, the U.S. Supreme

Court allowed the Texas law to go into effect at least for now. An unsigned 5-4 opinion, the Court

acknowledged “serious” constitutional questions, but said it “presents complex and novel”

procedural questions and thus declined relief.5 The dissenting justices largely viewed Texas’

attempt to circumvent constitutional review as a fig leaf, and would have the courts “consider

whether a state can avoid responsibility for its laws.”5 Justice Sotomayor, joined by Justices Kagan

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and Breyer, stated that the majority’s order was “stunning,” describing Texas law as “flagrantly

unconstitutional,” flouting 50 years of federal precedent.5

The Future of Constitutional Protection of Abortion Services

Roe v. Wade and Planned Parenthood v. Casey have arguably taken on the status of

“super-precedent,” with parts of society heavily invested in their preservation. At her

confirmation hearing, Justice Barrett refused to accord Roe this status, and it appears there may

now be five votes for that view. To be sure, in the years since Roe, the Supreme Court has

repeatedly cut back on the right to abortion, but never to the magnitude sought by Texas. This

term, the Court will hear Dobbs v. Jackson Women’s Health Organization, a challenge to the

constitutionality of a Mississippi law that (with limited exceptions) bars abortions after the 15th

week of pregnancy. In that case, the Court may be poised to abandon Roe’s core ruling that the

state may not proscribe abortions before fetal viability. Mississippi's opening brief unabashedly

states: “Roe and Casey are egregiously wrong. The conclusion that abortion is a constitutional

right has no basis in text, structure, history, or tradition.”6 While the Court might uphold

Mississippi’s law without fully abandoning constitutional protection of abortion services, it is hard

to see how it could do the same with Texas’ law. If a state can constitutionally ban abortion at 6

weeks, there is effectively nothing left of the Court’s constitutional protection of abortion.

The Supreme Court may still rule on the Texas case, it may even find it unconstitutional,

but its decision to allow the law to go into effect means many will women will be unable to access

abortion. As clinics close, abortion services will become difficult to obtain in the state. Public

officials of any political party should be concerned, both morally and legally, by the idea that

states can deputize citizens as the state’s agents of enforcement and shield a law against

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constitutional review. If such a rule was adopted, there is nothing to stop states with very

different political motivations from trying the same gambit – for example, to outlaw handgun

ownership in violation with the Supreme Court’s Second Amendment jurisprudence and avoid

review by making it private citizens, and not the state, who enforce the law through civil actions.

What happens next? On Sept 3rd, a district court issued a temporary restraining order to

block enforcement of the law against certain abortion providers. But this order is only binding as

to particular parties. The United States Department of Justice has brought its own suit naming

the state of Texas as the defendant, and on Sept 14, 2021, sought a temporary restraining order

or preliminary injunction against SB8. Its filing opens by intoning that Texas’ “unprecedented

scheme . . . to shield a plainly unconstitutional law from review cannot stand.”7 It argues that

even if Texas’ law prevents private individuals from bringing suit at this stage, “those obstacles

do not impede . . . an action by the United States against the State of Texas Itself.”7 The district

court has agreed to hold a hearing on this motion on Oct 1, 2021. Whether it grants or denies the

motion, its ruling will enable appellate and ultimately Supreme Court review. Whether the

Supreme Court takes this opportunity to revisit its earlier decision to let the Texas law stand

remains to be seen.

Lawyers will continue to debate the intricacies of Ex Parte Young, stays, and sovereign

immunity in this case. But this desiccated judicial wrangling must not distract from the reality

facing physicians on the front line of providing abortions, and for low-income women in their

care: abortions have become largely unavailable in Texas. This is a profoundly disturbing reality,

but one the U.S. Supreme Court has thus far allowed to persist.

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References

1. SB 8, Tex. (2021), available at https://legiscan.com/TX/text/SB8/2021

2. 209 U.S. 123 (1908)

3. Planned Parenthood of Greater Texas Surgical Health Services v. Texas Right to Life,

Plaintiffs' Original Petition and Request for Declaratory Judgment and Application for

Temporary Restraining Order and/or Anti-Suit Injunction, 2021 WL 4079311 (Tex. Dist.

Sept. 2, 2021) (https://www.scribd.com/document/523016915/Planned-Parenthood-vs-

Texas-Right-to-Life-temporary-restraining-order-request#from_embed )

4. Most Extreme Abortion Law in US Takes Effect in Texas. The Guardian. September 2,

2021. (https://www.theguardian.com/us-news/2021/sep/01/texas-abortion-law-

supreme-court)

5. Whole Women's Health v. Jackson, 594 U.S. _ (2021).

6. Dobbs v. Jackson Women’s Health, No 19-1392, Brief for Petitioners

(https://www.washingtonpost.com/context/mississippi-s-supreme-court-brief-dobbs-v-

jackson-women-s-health-organization/d59fcfd4-b8ec-42a8-b8e1-e54755fbd4f6/)

7. United States v. Texas, United States’ Emergency Motion for a Temporary Restraining

Order or Preliminary Injunction, Case No. 1:21-cv-796-RP (W.D. Tex. Sept 14, 2021)

(https://s3.documentcloud.org/documents/21062495/9-14-21-us-motion-for-tro-pi-

texas-sb8.pdf )